A Response to Goodman About the (Supposed) Duty to Capture

by Kevin Jon Heller

Ken noted last week that Lawfare has been hosting an ongoing debate over Ryan Goodman’s fascinating new article “The Power to Kill or Capture Enemy Combatants,” which is forthcoming in the European Journal of International Law. I contributed a long post criticizing Goodman’s claim that Art. 35(2) of the First Additional Protocol — which provides that “[i]t is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering” — supports the existence of a duty to capture instead of kill. Goodman has now responded with a long post of his own in which he claims that my post is “riddled with errors.”

I don’t have time to recapitulate the entire debate; interested readers should head to Lawfare. (Bobby Chesney’s introduction to Goodman’s most recent response contains links to all of the contributions.) I also don’t have time to respond to all of my supposed errors. Instead, in this post, I simply want to address three of Goodman’s most problematic claims, all of which are based on selective quotation of the historical sources he uses to build his argument.

Goodman’s first problematic claim is that an article by Henri Meyrowitz supports his reading of Art. 35(2). Here is what he says in his response to my Lawfare post (emphasis mine):

Let’s examine one of the most influential and widely cited (though not by Heller or Ohlin) essays on Article 35 of the Protocol: Henri Meyrowitz’s article, The Principle of Superfluous Injury or Unnecessary Suffering: From the Declaration of St. Petersburg of 1868 to Additional Protocol 1 of 1977, 34 International Review of the Red Cross 98 (1994). Not only does Meyrowitz support my reading of Article 35(2): he directly contradicts Heller’s (and Ohlin’s). Recall that Heller notes, in a passing reference to the Commentaries, that Article 35 incorporated the French expression “maux superflus.” But Heller doesn’t say anything about the significance of that textual development. If he did, Heller would be hard-pressed to explain his notion that “superfluous injury” excludes death. According to Meyrowitz, the French term, which was first used at Saint Petersburg in1868, specifically concerned unnecessary fatalities:

The French version … replaced, or rather corrected, the notion of unnecessary suffering by using the term “maux superflus”, which conveys the further notion of superfluous deaths ….

As Meyrowitz further explains, the English translation of the official French text included a mistranslation, and that error persisted in similar provisions of the 1874 Brussels Declaration and the 1907 Hague Regulation. What was the mistranslation? The English version “fail[ed] to render the additional meanings of superfluous deaths” (Meyrowitz: 104)

Note the ellipsis after “the further notion of superfluous deaths.” Here is the quote with the language that Goodman omits in favor of the ellipsis (emphasis mine):

The French version … replaced, or rather corrected, the notion of unnecessary suffering by using the term “maux superflus”, which conveys the further notion of superfluous deaths expressed in the fourth preambular paragraph of the Declaration of 1868.

And what does the “fourth preambular paragraph of the Declaration of 1868” say (emphasis mine)?

That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable.

As the bolded text makes clear, Meyrowitz is not talking about any unnecessary deaths, such as those that are caused by a choice to kill instead of capture. On the contrary, he is talking specifically about deaths that do not take place in battle, but result from weapons that not only disable a combatant, but also inevitably cause him to die from his wounds after the battle is over. The Meyrowitz quote, therefore, provides no support for Goodman’s supposed duty to capture. Instead, it completely undermines it.

Goodman’s second and third problematic claims each concern his interpretation of the ICRC Commentary to Art. 35(2) of AP I. Here is what his EJIL article says about that Commentary (pp. 43-44):

[T]he Commentaries state that the final text of Article 35 “corresponds to the position of the ICRC and to the intent of the original rule” in which the ICRC had expressly spelled out the lesser evil rule with respect to capture instead of kill.

That statement gets both the “position of the ICRC” and the “original rule” wrong. With regard to the former, the language in quotes comes from para. 1417 of the Commentary, and Goodman quotes it accurately. But both the EJIL article and Goodman’s first Lawfare post omit the footnote that comes between “the position of the ICRC” and “to the intent of the original rule” – footnote 53. That footnote reads thus (emphasis mine):

The ICRC draft was as follows: “It is forbidden to employ weapons, projectiles, substances, methods and means which uselessly aggravate the sufferings of disabled adversaries or render their death inevitable in all circumstances.” This text is even closer to the St. Petersburg Declaration of 1868. The article is entitled: “Prohibition of unnecessary suffering.”

Echoing Meyrowitz, the bolded text makes clear that, in the ICRC’s view, Art. 35(2) is addressed to a very specific situation: namely, where the use of a method or means of warfare injures a combatantbut does not kill him. According to the ICRC, what is impermissible is not killing a combatant it is possible to capture, but using a means or method of warfare that, if it only disables the combatant, will “uselessly aggravate [his] suffering” or will inevitably lead to his death after the battle is over.

Goodman does not address this criticism in his response to my Lawfare post. Instead, he claims, with regard to the ICRC draft, that “this very language includes a reference to ‘death.’ How then does Article 35 itself does not include ‘death’ as a form of ‘superfluous injury or unnecessary suffering’?” Unfortunately for Goodman, the Commentary’s reference to death actually undermines his thesis, because it indicates that the kind of death to which Art. 35(2) refers is not unnecessary death in battle, but the unnecessary death of already-disabled combatants after battle.

Finally, Goodman also misstates the “original rule” mentioned in para. 1417 of the ICRC Commentary. Here is what he says in his recent response to my Lawfare post:

Secondly, the issue is not just the position of the ICRC but also “the intent of the original rule.” The scope of Article should thus be interpreted with reference to both. And, here’s the important point: in the early 1970s, when the ICRC submitted its report to an intergovernmental meeting, the ICRC explained the intent of the original rule in these terms:

“[R]ecourse to force must never be an end in itself. It will consist in employing the constraint necessary to obtain that result. Any violence reaching beyond this aim would prove useless and cruel. The principle of humanity enjoins that capture is to be preferred to wounding, and wounding to killing ….”

This passage shows that the intent of the original rule includes the principle that “capture is to be preferred to wounding, and wounding to killing.” Yet Heller seems to agree with me that Article 35 “corresponds to the position of the ICRC and to the intent of the original rule.”

Goodman claims here (as he did in the EJIL article on pp. 43-44) that the “original rule” is that “[t]he principle of humanity enjoins that capture is to be preferred to wounding, and wounding to killing.” But that is incorrect. In fact, para. 1417 is referring to the original rule the Commentary discusses three paragraphs earlier, in para. 1414 — the St. Petersburg Declaration. And what is that “original rule,” according to para. 1414 of the Commentary (emphasis mine)?

The principle is that of the prohibition of weapons which would unnecessarily increase the suffering of men rendered hors de combat, or which would inevitably lead to their death. It is sufficient to render enemy combatants hors de combat.

The original rule, in other words, has nothing to do with prohibiting killing where capture is possible. Like the ICRC draft text, and consistent with Meyrowitz’s interpretation of the St. Petersburg Declaration, the original rule simply prohibits using weapons that cause unnecessary suffering or the inevitable death of combatants who are wounded but not killed in battle.

How do I know that my interpretation of the original rule is better than Goodman’s? Because he can only make his argument by selectively quoting the ICRC Commentary. Here again is his quote (pp. 43-44):

[T]he Commentary explains that this entry in the record “corresponds to the position of the ICRC and to the intent of the original rule.”

And here is the quote with the text that Goodman omits (emphasis mine):

As we have seen above, this corresponds to the position of the ICRC and to the intent of the original rule.

The bolded clause is critical, because it indicates that the “original rule” is one discussed earlier in the commentary to Art. 35 — and there is no mention of capture anywhere in that commentary. Not above, not below. What is above is the Commentary’s discussion of the St. Petersburg Declaration, which prohibits causing disabled combatants — not ones still able to fight — unnecessary suffering and superfluous injury. That is the “original rule” to which the Commentary refers — and it provides no support for Goodman’s duty to capture.

I find Goodman’s article deeply compelling de lege ferenda. De legelata, however, it is just as deeply problematic. Revisionist history is a good thing. Inaccurate history is not.

One Response

Bravo, Kevin.

I would add only a historical note to your excellent analysis. It was concern for the victims of war, primarily those injured in the Battle of Solferino, that led Henri Dunant to help found the Red Cross. His original goal was to provide care for those wounded in battle but still living (who were strewn across the battlefield and uncared for until Dunant arrived and assembled help), not to prevent their deaths in battle. Hence, Dunant is credited with helping to bring the Geneva Convention for the Amelioration of the Wounded in Armies in the Field (1864) into being. Surely, the St. Petersburg Declaration (1868) built on this impetus, but not anywhere to the extent claimed by Ryan. Thus, historically speaking, your argument on these matters makes much more sense.

Additionally, Ryan’s reliance on the eminent Jean Pictet should be viewed in light of Pictet’s views, published in 1951 the American Journal of International Law, indicating his belief that the Red Cross should always attempt to widen the scope of the law of armed conflict. Pictet’s lesser evil beliefs should be viewed as an (so far, unsuccessful) effort to do so.

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